I have a client who has been notified that they have been overpaid in the years 04/05, 05/06 and 06/07.

Cl has been issued with numerous notices all quoting different overpayment amounts. Is not clear how and if overpayment arose, and if so whether has been correctly calculated.

We wrote appealing decisions - specifically the fact of the overpayment and the calculation of the amount - and at the same time requested information about how they arose, which accounts paid into etc.

HMRC recieved appeals within time limits, but say have 'cancelled' appeals as no grounds. We explained that not appealing whether overpayment recoverable, but the fact that there has actually been an overpayment. Was told can only appeal things like not being awarded a disability element.

Checked regs - and the notes to section 38 say that an appeal is to the Tribunal Service not HMRC and so they cannot 'cancel' appeal.

Any tips on how to continue from here - I'm wondering if not enough information given in appeal letter to count as having grounds - but we need to know from HMRC first what facts and figures they are using.

By the way - we were not notified in writing that appeal 'cancelled' or that no grounds for appeal , we rang to ask why recovery action had not been put on hold.

I’m not an expert on tax credits by any means but the IR line sounds very iffy to me. An appeal under section 38 arises (amongst other things) against an entitlement decision made under section 18 or a decision under section 16(1), which raises an initial decision under section 14.

Section 14 initial decisions determine whether to award and the rate of an award. Section 16 decisions amend or terminate awards if the rate awarded under section 14 is not in fact correct. Section 18 decisions decide the amount of entitlement for the relevant year.

It appears to me that by using the words rate, amount and entitlement in the legislation it allows a wide scope for appeals and does not support a more restrictive interpretation that the IR in your neck of the woods are claiming.

I agree that The Tribunals Service has the final say and the IR must send the appeal down. You could always ask TTS to issue a direction to the IR, or whisper judicial review proceedings in the IR’s pretty little ears.

I have not used the appeals service for this type of case. An alternative approach is to go through the complaints procedure, but this does involve getting information from the claimant on exactly how much they have been paid and when (copies of bank statements, payslips etc.), getting details of their circumstances throughout the period, calculating what the entitlement should have been and comparing it with the information on the TCO awards. This is a bit of a slog but, in my experience, often results in payments or entitlements different from the figures TCO are using. You can then use this information to make a complaint and, unless TCO back down or produce details to persuade you they are right, eventually go to the Independent Adjudicator. Recovery should be suspended throughout this process.

I had a similar case recently where the initial response to the appeal was to issue a giro by way of an 'agreement' to settle the appeal. This was for money that the client wasn't actually entitled to, they had completely misread what we were appealing about. So I returned the giro with a letter re-iterating the actual grounds of appeal and saying that we didn't accept the agreement. HMRC then basically took no further action. When I tried to move things along via the advisers helpline I was told the appeal had been closed down, no I couldn't have a tel. no for the appeals section and all they could do was email the appeals section. They did this but got no response. So in the end I wrote to the District Chair at TAS. He issued directions basically to the effect that HMRC had x no. of days to prepare a submission, and if they didn't respond he would go ahead without it. Within days I had a phone call from a very pleasant and helpful perosn at HMRC who even allowed me to have her direct line no. She promptly revised the decision and issued payment within days. So I would definately advocate that you take a similar approach.

Exactly! It usually pays to stand up to a bully and go straight for the throat. No shilly-shallying around.

Have you passed on this experience to CPAG's tax credits monitoring network? It would greatly encourage other advisers (it has encouraged me!) to know that the TCO can be induced to acknowledge that they are in fact publicly accountable. All I have seen on this so far on the Tax Credits Monitoring Network is two advisers who have asked their TAS District Chair to issue a direction to the TCO to produce an appeal submission, and the TCO has ignored the direction.
I have an ongoing overpayment appeal for a client myself, (against the amount of the overpayment, not its recoverability). The TCO has admitted in writing that they have made a mistake in their calculations and the overpayment is not as big as they first stated, but they are not going to correct the mistake at present because they are "too busy". I have yet to try asking my TAS District Chair for a direction, but I will post the results on the TCMN when I do.

link to CPAG's tax credits monitoring network from the resources area of http://www.rightsnet.org.uk/taxcredits/

I am not an expert on appeals but you have to state a reason for the appeal. The appeal is against the decision and not the overpayment so you cannot appeal against the overpayment in isolation. The Tribunal don't have authority over the overpayment. You are stating"..but we need to know from HMRC first what facts and figures they are using". Can this not be determined by looking at the latest version of the awards for each year ? If the awards are incorrect it is not necessary to appeal as it may be possible to resolve it by a phone call once it is established why the amendments were made.

My admittedly limted experience suggest that the only time I have ever seen comprehensible calculations is in appeal submissions. I regret to say that I have never been able to make head or tail of any award letter. I'm not surprised claimants can't tell whether or not they are being overpaid. I would try to get an appeal if only to get a proper answer. The HMRC tax-based approach of negotiated settlements sits very uneasily with the right to make a true appeal on an issue of entitlement. Hardly surprising so few TC appeals actually reach the Tribunals Service.

Brigid

Carol- Just to clarify, the case I referred to was not regarding an overpayment. I meant it was similar in terms of HMRC ignoring the appeal. Sorry for any confusion caused.